Chain of Harassment: Employer Liability and the Definition of Supervisor in Sexual Harassment Cases

Transcription

1 Chain of Harassment: Employer Liability and the Definition of Supervisor in Sexual Harassment Cases Amelia Shumeyko I. Introduction II. Sexual Harassment A. Quid Pro Quo Versus Hostile Work Environment III. Employer Liability: Ellerth and Faragher Establish the Vicarious Liability Standard A. Burlington Industries, Inc. v. Ellerth B. Faragher v. City of Boca Raton IV. The Circuit Split: Defining Supervisor in the Wake of Ellerth and Faragher A. Narrow Definition B. Broad Definition V. The Broader Definition is Fundamentally More Fair A. The Broad Definition Aligns with the EEOC Guidelines B. The Broad Definition is More Applicable to a Variety of Employment Situations C. The Broad Definition More Effectively Ensures the Prevention of Harassment VI. Conclusion J.D. Candidate, 2011, Seton Hall University School of Law; B.A., 2008, cum laude, Boston College. I am grateful to Professor Charles Sullivan for his advice and sense of humor throughout the writing process. I am also indebted to the members of Seton Hall Circuit Review for their hard work and editing efforts. Finally, I thank my family and friends for all their love and support. 125

2 126 SETON HALL CIRCUIT REVIEW [Vol. 7:125 I. INTRODUCTION A young woman serves as a secretary to the director of the library at a law school. The professors at the school rotate in serving as director, but the secretary remains in her position. The current director is a tenured and distinguished professor, well-loved among students and faculty at the school. He makes frequent demands of the secretary; he has the ability to increase her workload as he, himself, takes on novel challenges. The secretary s duties consist of the administrative and housekeeping portions of the director s tasks. Therefore, he assigns her daily work and may overtly or impliedly critique her performance. The two work in close proximity, and their shared office is separate from the rest of the faculty. The secretary, if asked, would likely say that she works for the director, or reports to this particular professor. In examining the exact hierarchy, however, it is clear that the director has no authority to terminate this secretary s employment; rather, such decisions remain in the control of the school s administrators. In this (not unusual) situation, what recourse does the secretary have in the event of sexual harassment? If the director cannot effect a significant employment action against her, some courts would consider him simply a co-employee; therefore, the secretary might hold the school liable if it was negligent in not preventing the harassment. 1 Other courts, however, would consider the director a supervisor, and might hold the school vicariously liable for director s harassment but would provide an affirmative defense. 2 The rationale is that employers do not entrust coemployees with any substantial authority; therefore, the employer should not be liable unless it was negligent in its failure to discover or remedy the harassing conduct. 3 Conversely, employers provide supervisors with authority, and this power often aids in supervisors misconduct. 4 The question first turns upon the type of harassment, and then, ultimately, on the definition of supervisor. Currently, United States federal courts are split on the supervisory standard, with the majority most likely considering the library s director a co-employee for vicarious 1 See Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005); Joens v. Morrell & Co., 354 F.3d 938 (8th Cir. 2004); Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027 (7th Cir. 1998). 2 See Mack v. Otis Elevator Co, 326 F.3d 116 (2d Cir. 2003); Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1254 (M.D. Ala. 2001); Kent v. Henderson, 77 F. Supp. 2d 628 (E.D. Pa. 1999); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953 (D. Minn. 1998). 3 Parkins, 163 F.3d at See id. at 1033.

3 2010] CHAIN OF HARASSMENT 127 liability purposes under Title VII. 5 The Second Circuit, however, would apply a multifactor analysis to determine the director s status. 6 Given his ability to direct her daily activities and her arguably reasonable perspective as to the nature of their employment relationship, the Second Circuit might declare the director to be a supervisor and subsequently hold the school vicariously liable for the director s harassing conduct, subject to an affirmative defense. In the wake of two Supreme Court cases clarifying the standards for employer liability in sexual harassment claims, lower courts have attempted to implement a test to differentiate between supervisors and mere co-workers. Such a test is necessary because employers are vicariously liable (subject to an affirmative defense) for supervisor harassment, but liable based on their negligence for co-employee harassment. Part II of this Comment describes sexual discrimination under Title VII and the differences between quid pro quo and hostile work environment harassment claims. Part III addresses the Supreme Court precedent on employer liability based on the Court s holdings in Burlington Industries, Inc. v. Ellerth 7 and Faragher v. City of Boca Raton. 8 Part IV of this Comment describes the subsequent lower court decisions that led to the current split between the circuit courts. Finally, Part V urges the circuit courts to adopt the broad definition of the term supervisor, currently the minority view. II. SEXUAL HARASSMENT Sexual harassment is unique compared to other discriminatory behavior. 9 Title VII provides employees a cause of action when those who engage in harassment discriminate on the basis of membership within a protected class. 10 Most other violations of Title VII require an adverse change in employment by means of compensation or position; 11 however, an employee can maintain a Title VII claim for harassment even if the harassment caused no economic or adverse positional impact 5 See Noviello, 398 F.3d at 76; Joens, 354 F.3d at 938; Mikels, 183 F.3d at 323; Parkins, 163 F.3d at See Mack, 363 F.3d U.S. 742 (1998) U.S. 775 (1998). 9 MICHAEL J. ZIMMER, CHARLES A. SULLIVAN & REBECCA HANNER WHITE, CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION 370 (7th ed. 2008) ( [U]nlike other discriminatory behavior, sexual harassment involves much conduct that, in other times and settings, is perfectly appropriate. ). 10 Id. 11 Id.

4 128 SETON HALL CIRCUIT REVIEW [Vol. 7:125 at all. 12 Furthermore, an entity may pursue other types of discrimination according to its own policy or, at least ostensibly, according to its own interests. 13 Harassers, however, typically violate policy as opposed to complying with it. 14 They are more frequently seeking to satisfy their own interests rather than seeking to further an underlying purpose of the employer. 15 Ultimately, this web of agency relations mixed with conflicts of personal and business interests creates a question of employer liability in harassment cases. 16 When should an employer be liable for its employee s harassment of another employee? When does the harasser s status manifest a sufficient relationship with the employer such that it would not be unfair to impute liability to the employer? The judiciary has approached these questions mindful of congressional intent; however, the statutory premises of employment discrimination leave much room for interpretation. Title VII of the Civil Rights Act prohibits sex discrimination in the employment context, making it unlawful for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s race, color, religion, sex, or national origin. 17 The Supreme Court has interpreted the statute to protect against harassing conduct based on the sex of the victim. 18 Without explicit definitions in the statute, the Court has relied on congressional intent when interpreting and enforcing the statute. 19 A. Quid Pro Quo Versus Hostile Work Environment The Supreme Court clarified the law governing sexual harassment under Title VII in Meritor Savings Bank v. Vinson, establishing that the statutory language does not limit the ability to file suit to economic or tangible discrimination. 20 Congress instead intended the statute to 12 Id. 13 See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (challenging alleged discriminatory hiring practices that resulted in skilled jobs for whites and unskilled jobs for non-whites); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (challenging the requirement of a high school diploma or passing of intelligence tests as a condition of employment unless reasonably related to the measurement of job capability). 14 ZIMMER ET AL., supra note 9, at Id. 16 Id U.S.C. 2000(e) 2(a)(1) (2006). 18 See Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 65 (1986) (explaining that sexual harassment is a form of sex discrimination as the Equal Employment Opportunity Commission has defined it). 19 See id. 20 Id. at 64.

5 2010] CHAIN OF HARASSMENT 129 prohibit a spectrum of unequal treatment. 21 The Court invoked the Guidelines of the Equal Employment Opportunity Commission (EEOC), citing the agency s definition of sexual harassment. 22 The Court noted that, while the Guidelines are not controlling, they represent an informed and experienced authority that can provide guidance to courts and litigants. 23 Importantly, the Court derived two categories of sexual harassment from the Guidelines: situations in which sexual misconduct is directly linked to the grant or denial of an economic quid pro quo, 24 and situations in which sexual misconduct has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile, or offensive working environment. 25 Both types of harassment, the Court concluded, violate Title VII. 26 Quid pro quo harassment alters the terms and conditions of employment by definition. 27 To be actionable, however, sexual harassment due to a hostile work environment must be sufficiently severe or pervasive to alter the conditions of [the victim s] employment and create an abusive working environment. 28 The Court also held that employers are not always automatically liable for sexual harassment committed by their supervisors. 29 Instead of a per se rule, the Court advised lower courts to follow guidance from the EEOC and look to agency law in developing this area of Title VII discrimination. 30 After Meritor, the Court established that the standard for finding that a hostile work environment exists is both subjective and objective. 31 A plaintiff need not suffer a psychological injury in order to maintain a non-quid pro quo sexual harassment claim. 32 Although Title VII certainly prohibits such egregious conduct, that bar is too high. 33 Rather, 21 Id. (quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n.13 (1978)). 22 Id.; see About the EEOC: Overview, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, (last visited November 24, 2010). The EEOC is the federal agency with the power to enforce the federal laws that make discrimination on certain bases illegal in the employment context. Id.; see infra Part IV.A and note Meritor Sav. Bank, F.S.B., 477 U.S. at Id. 25 Id. (quoting 29 C.F.R (a)(3) (1985)). 26 Id. at Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998). 28 Meritor Sav. Bank, F.S.B., 477 U.S. at Id. at Id. 31 See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). 32 Id. 33 Id.

6 130 SETON HALL CIRCUIT REVIEW [Vol. 7:125 the proper standard lies somewhere between any conduct that is merely offensive and conduct that may lead to a tangible, negative effect on the plaintiff s psyche. 34 A hostile work environment is one that would reasonably be perceived, and is perceived, as hostile or abusive. 35 The reasonable person aspect of the objective standard is complicated in harassment cases. As some scholars and courts have acknowledged, men and women (as well as whites, non-whites, etc.) have different perspectives of what constitutes harassing behavior. 36 For this reason, it is more fair to the harassed employee to use a standard that considers the position of a reasonable person with the same fundamental characteristics as the victim. 37 While this standard would allow the court to consider the specific attribute of the victim that may vary his or her experience of harassment, it would not go so far as becoming entirely subjective. Courts have avoided the subjective standard because it would not serve the goals of gender equality to credit a perspective that was pretextual or wholly idiosyncratic. 38 III. EMPLOYER LIABILITY: ELLERTH AND FARAGHER ESTABLISH THE VICARIOUS LIABILITY STANDARD If one employee harasses another employee, when can the plaintiff impute liability onto his or her employer for the harasser s conduct? As the Supreme Court views it, the answer turns on the relationship between the employer and the harasser, and between the harasser and the victim. 39 In two cases decided together, the Court established a standard for vicarious employer liability in sexual harassment suits under Title VII Id. at Id. at See ZIMMER ET AL., supra note 9, at See ZIMMER ET AL., supra note 9, at 382 (citing Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) (holding that analysis of the harassment should be from the victim s perspective, and stressing that a reasonable person standard would reinforce discrimination and fail to understand the victim s view)); Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183, 1203 (1989) (arguing that women experience sexual harassment differently than men because: (1) women s physical and social vulnerability to sexual coercion creates discomfort with sexual encounters; (2) women are constantly overwhelmed with sexual violence and objectification in both actual and media-depicted forms; and (3) women generally hold a more limited view of when and how sexual interactions are appropriate); Cf. Victoria Nourse, Upending Status: A Comment on Switching, Inequality, and the Idea of the Reasonable Person, 2 OHIO ST. J. CRIM. L. 361 (2004) (discussing the reasonable person standard and switching in jury instructions, to allow for a change in the ultimate objective perspective without altering the substantive law). 38 See Abrams, supra note 37, at Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998). 40 Id.; Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

7 2010] CHAIN OF HARASSMENT 131 By adopting the vicarious liability standard, the Court rejected a negligence standard for supervisor harassment. 41 The Court noted, however, that the lower federal courts have uniformly applied such a negligence standard to co-employee harassment. 42 Therefore, the Supreme Court created a liability scheme which turns on whether a supervisor or a co-employee has perpetuated the harassing conduct. A. Burlington Industries, Inc. v. Ellerth In Ellerth, plaintiff Kimberly Ellerth, a salesperson for Burlington Industries, filed a complaint alleging constant sexual harassment by a midlevel manager, Ted Slowik. 43 Though he was not Ellerth s immediate supervisor, Slowik had the power to hire and promote employees subject to his supervisor s approval. 44 Ellerth alleged that Slowik repeatedly made boorish and offensive remarks and gestures, and that on three occasions he made comments that may have constituted threats against Ellerth s employment. 45 Slowik first told Ellerth he could make [her] life very hard or very easy at Burlington in response to Ellerth rejecting Slowik s advances while on a business trip. 46 Several months later, during an interview for her promotion, Slowik told Ellerth she was not loose enough, and then rubbed her knee. 47 Later, via telephone, Slowik denied Ellerth s request for permission to use a customer s logo in a fabric sample and asked if she was wearing shorter skirts yet... because it would make [her] job a whole... lot easier. 48 Shortly after the phone call, Ellerth s supervisor admonished her about punctuality with customer service, and Ellerth quit. 49 She first faxed a letter giving reasons aside from the alleged harassment, but later sent a letter citing Slowik s behavior as the reason for her resignation. 50 Ellerth knew about the company s policy against sexual harassment; however, she did not want to report the incidents while employed and therefore did not notify anyone at the company with the authority to act 41 See Faragher, 524 U.S at 802, Id. at 799 (noting that a number of courts of appeals have applied a standard where the employer is liable for co-worker harassment if it knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action ). 43 Burlington Indus., Inc., 524 U.S. at Id. 45 Id. at Id. at Id. 48 Id. 49 Burlington Indus., Inc., 524 U.S. at Id.

8 132 SETON HALL CIRCUIT REVIEW [Vol. 7:125 on such reports. 51 After receiving an EEOC right-to-sue letter, Ellerth filed suit alleging sexual harassment and constructive discharge by Burlington Industries. 52 The Supreme Court reasoned that since Meritor, the courts of appeals had determined that the standard for holding an employer responsible for the actions of an employee depended on the type of discrimination the victim suffered. 53 The plaintiff could impute liability to the employer if she or he established a quid pro quo claim. 54 Although the petition for certiorari sought a specific answer on Ellerth s quid pro quo claim, the Court focused on deciding a standard for vicarious liability for harassment claims that did not necessarily reach the level of quid pro quo. 55 The Court reasoned that given express congressional direction it must interpret Title VII through the lens of agency principles. 56 While sexual harassment by a supervisor is generally not considered to be conduct within the scope of employment, which is the normal basis of respondeat superior liability, the Court noted that this was not the only basis for holding employers vicariously liable. 57 The Court looked to the Restatement (Second) of Agency (1957) (Restatement), which sets out principles of vicarious liability for torts outside of the scope of employment in Section 219(2). 58 In subsections (a) and (c), the Restatement established that a master may be liable for a servant s acts outside of the scope of employment if the master intended the conduct or the consequences or the conduct violated a non-delegable duty of the master. 59 The Court rejected these subsections as potential grounds for imputing liability in the sexual harassment setting because the employer did not act with any tortious intent and the conduct did not involve a non-delegable duty Id. at Id. 53 Id. at Id. 55 Burlington Indus., Inc., 524 U.S. at 754. It is arguable, however, that the use of a tangible employment action is a recasting of quid pro quo discrimination. See B. Glenn George, Employer Liability for Sexual Harassment: The Buck Stops Where?, 34 WAKE FOREST L. REV. 1, 14 (1999) (noting that the Supreme Court s use of tangible employment action describes a situation that lower courts previously had described as quid pro quo sexual harassment). 56 Id. ( In express terms, Congress has directed federal courts to interpret Title VII based on agency principles. Given such an explicit instruction, we conclude a uniform and predictable standard must be established as a matter of federal law. ). 57 Id. at Id. 59 Id. at Id.

9 2010] CHAIN OF HARASSMENT 133 Instead, the Court focused on subsections (b) and (d), which imputed liability if the master was negligent or reckless or the employee used apparent authority or was aided in accomplishing the tort by the existence of the agency relation. 61 Lower courts had already established a negligence standard for the liability of employers under Title VII, and employers were liable if they knew or should have known about the sexual harassment but failed to stop the conduct. 62 The Court noted that this was a minimum standard for the liability of employers and Ellerth sought to impose a more exacting rule. 63 The Court therefore shifted its analysis to subsection 219(2)(d). 64 Subsection (d) involves two distinct bases for establishing employer liability: apparent authority and aided in... the agency relation. 65 Apparent authority exists where an agent asserts power that the principal has not actually given. 66 Because harassment usually involves a misuse of actual power instead of a simulation of power, the court rejected apparent authority as a basis for liability. 67 The Court noted that aided in the agency relation was the more appropriate standard. 68 The Court, however, determined that the standard must require something more than the employment relation itself because anyone in a working environment might be aided in committing intentional torts by virtue of the employment context. 69 The Court further dissected the potential rule, analyzing its application in cases where a tangible employment action did or did not exist. 70 A tangible employment action is a significant change in employment status and includes hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. 71 The Court noted that lower courts had already determined that the employer is vicariously liable if an act of discrimination results in a tangible employment action. 72 In the context 61 Burlington Indus., Inc., 524 U.S. at 759 (internal quotation marks omitted). 62 Id.; Faragher v. City of Boca Raton, 524 U.S. 775, 799 (1998). 63 Burlington Indus., Inc., 524 U.S. at Id. 65 Id. 66 Id. 67 Id. 68 Id. at See Burlington Indus., Inc., 524 U.S. at 760 ( Proximity and regular contact may afford a captive pool of potential victims. Were this to satisfy the aided in the agency relation standard, an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all co-worker harassment, a result enforced by neither the EEOC nor any court of appeals to have considered the issue. ). 70 Id. 71 Id. at Id. at 760.

10 134 SETON HALL CIRCUIT REVIEW [Vol. 7:125 of agency principles, the Court explained that vicarious liability is justifiable because the harasser could not have taken the action without the agency relation. 73 Only supervisors can make decisions of the tangible kind. 74 In situations such as the case at hand, however, it is less clear whether the agency relationship aids in a supervisor s harassment when it does not result in a tangible employment action. 75 The Court s ultimate decision therefore combined a number of considerations. First, it considered the potential trouble with imputing liability by the aided in standard regardless of whether a tangible employment action occurred. 76 Second, it reflected on the holding in Meritor, which dictated that agency principles compel vicarious liability in supervisor harassment cases. 77 Finally, the Court weighed the congressional intent and purpose of Title VII: to encourage employers to develop anti-harassment policies as well as systems for grievances. 78 The courts of appeals were already in agreement with respect to subjecting employers to vicarious liability when a supervisor effects a tangible employment action on a subordinate. 79 Weighing the above considerations, the Court extended that rule by holding that a plaintiff may also impute liability to an employer for a supervisor s creation of a hostile work environment, even absent a tangible employment action. 80 The Court, however, provided an escape hatch from such liability by noting that if the supervisor has not taken a tangible employment action, the employer has an affirmative defense. 81 Employers must first show that: (i) they exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (ii) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 82 Ultimately, Ellerth did not allege that Slowik caused a tangible employment action; however, the Court decided this was not 73 Id. at Id. at Burlington Indus., Inc., 524 U.S. at 762 (noting that from one perspective, a supervisor is always aided in the agency relation; but from another, a supervisor might commit the same acts as a co-employee, so his or her status has little import). 76 Id. at Id. 78 Id. at 764 (reasoning that hinging liability on an employer s effort to develop deterrent policies would help limit litigation, as it would foster resolution within company procedures). The Court also noted Title VII s intended similarity to the avoidable consequences doctrine of tort law, which would support the limitation of employer liability in certain circumstances. Id. 79 Id. at Id. at Burlington Indus., Inc., 524 U.S. at Id.

11 2010] CHAIN OF HARASSMENT 135 dispositive. 83 Therefore, the Court determined that Burlington Industries was subject to vicarious liability, but should have the opportunity to assert and prove the affirmative defense. 84 In its holding, the Court only vaguely defined supervisor for the purpose of this analysis. This is important because employers may be vicariously liable if a supervisor with immediate (or successively higher) authority over the employee creates a hostile work environment. 85 Because the Court used the term supervisor but also qualified the amount and relational authority of the title, confusion has ensued as to the application of this standard. 86 B. Faragher v. City of Boca Raton In a companion case to Ellerth, the Court applied the same holding to a different set of facts. In Faragher v. City of Boca Raton, plaintiff Beth Ann Faragher, an ocean lifeguard for the Marine Safety Section of the Parks and Recreation Department (the Department ) of Boca Raton, Florida, worked with other lifeguards under the immediate supervision of Bill Terry, David Silverman, and Robert Gordon. 87 During the five years of Faragher s employment, Terry subjected the female employees, including Faragher, to repeated and uninvited touching, crude remarks about women, and specific comments insulting Faragher s body. 88 Silverman touched Faragher without invitation and made various comments about women, sex, and the lifeguards bodies. 89 Faragher did not complain about Terry or Silverman to her management. 90 Although she told Gordon about the pair s behavior, she did not consider these conversations formal complaints. 91 Gordon did not feel that it was his responsibility to report the conduct of Terry or Silverman to his supervisor or to any other official. 92 The city organized the department with a paramilitary chain of command. 93 Terry was the chief of the Marine Safety Division, and had authority to hire, supervise, reprimand, and record any actions he took 83 Id. at Id. 85 Id. at See infra Part IV. 87 Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998). 88 Id. at Id. 90 Id. 91 Id. 92 Id. at Faragher, 524 U.S. at 781.

12 136 SETON HALL CIRCUIT REVIEW [Vol. 7:125 with respect to the lifeguards. 94 Silverman was a Marine Safety Division lieutenant for four years and then became a captain. 95 Gordon was also promoted from lieutenant to captain; in this position, the pair supervised the lifeguards daily assignments and fitness training. 96 Within the chain, the lifeguards answered to the lieutenants and captains, who in turn answered to Terry. 97 Although the city adopted a sexual harassment policy in 1986 and revised and reissued it in 1990, the city failed to distribute the material to the employees of the Marine Safety Section. 98 Therefore, Terry, Gordon, Silverman, and many of the lifeguards were unaware of the policy. 99 As in Ellerth, the Supreme Court focused on agency law in determining that it makes sense to impute liability onto employers for some conduct made possible by an abuse of supervisory authority. 100 The Court then reasoned that, despite this logic, a vicarious liability standard must also consider the Meritor holding that employers are not automatically liable for a supervisor s harassment. 101 The Court issued the same holding as in Ellerth 102 and explained the deterrent effect of the affirmative defense, noting that holding employers vicariously liable for the actions of supervisors without an incentive to prevent sexual harassment from occurring would be at odds with the statutory policy of Title VII. 103 Therefore, with the availability of the affirmative defense, plaintiffs who might have found redress for a grievance through an employer s preventive or remedial apparatus should not have access to damages for a harm that the plaintiff could have avoided. 104 IV. THE CIRCUIT SPLIT: DEFINING SUPERVISOR IN THE WAKE OF ELLERTH AND FARAGHER After Ellerth and Faragher, lower federal courts have faced problems applying the defense to specific employment situations. To appropriately apply the defense, the courts have been called upon to interpret the definition of supervisor in the Supreme Court s holdings. Shortly after the Court made the defense available, the Seventh Circuit 94 Id. 95 Id. 96 Id. 97 Id. 98 Id. at Faragher, 524 U.S. at Id. at Id. at 804; see Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 72 (1986). 102 Faragher, 524 U.S. at Id. at Id. at

13 2010] CHAIN OF HARASSMENT 137 defined supervisor narrowly, limiting a plaintiff s potential recovery from employers to situations in which the harasser had authority to make tangible employment actions even if he or she did not actually effect a change in the employee s status. 105 The First and Eighth Circuits agreed with the Seventh Circuit s approach. 106 Similarly, the Fourth Circuit took an analogous approach to the definition even before the Supreme Court issued its decision on a vicarious liability standard. 107 At nearly the same time, the Seventh Circuit issued its opinion on the definition of the term supervisor, the District Court for the District of Minnesota issued an opinion that established a broader definition, the effect of which would subject more employers to vicarious liability by treating more individuals as supervisors. 108 The Second Circuit also employed a broad definition of supervisor, creating a circuit split. 109 The Second Circuit, however, remains the sole appellate court to reject the narrow, bright line rule; thus, it has adopted a rule that is fundamentally more fair to employees while still fulfilling the preventive purposes of Title VII. 110 The following section will explain the circuit split and illustrate the various nuances within the different definitions of supervisor in hostile work environment sexual harassment claims. A. Narrow Definition The Seventh Circuit was the first appellate court to define supervisor in the wake of the Ellerth and Faragher decisions. 111 In Parkins v. Civil Constructors of Illinois, the plaintiff, Lesley Parkins, sued her employer under Title VII alleging hostile work environment sexual harassment and retaliation. 112 As a dump-truck driver, her duties 105 Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1034 (7th Cir. 1998) (holding that the essence of supervisory status is the authority to affect the terms and conditions of the victim s employment and such authority consists mainly of the power to hire, fire, demote, promote, transfer, or discipline an employee ). 106 Joens v. Morrell & Co., 354 F.3d 938, 940 (8th Cir. 2004) ([ [T]he alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties. ); Noviello v. City of Boston, 398 F.3d 76, 96 (1st. Cir. 2005) (holding no vicarious liability because the harassers did not have the authority to terminate, discipline, or otherwise affect the terms and conditions of [plaintiff s] employment ). 107 Mikels v. City of Durham, 183 F.3d 323, 333 (4th Cir. 1999). 108 Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953, 973 (D. Minn. 1998). 109 Mack v. Otis Elevator Co., 326 F.3d 116, 125 (2d Cir. 2003). 110 But see Whitten v. Fred s, Inc., 601 F.3d 231 (2010) (suggesting that the Fourth Circuit may be aligning with the Second Circuit on a broader definition of supervisor). 111 Parkins, 163 F.3d at Id. at 1031.

14 138 SETON HALL CIRCUIT REVIEW [Vol. 7:125 at Civil Constructors included hauling construction materials and debris to and from work sites. 113 From 1994 to 1996, various co-workers mistreated Parkins using coarse language and eventually participating in uninvited touching. 114 In 1996, five co-workers harassed Parkins by making suggestive comments about a pornographic picture at the workplace. 115 On this occasion, Parkins alleged that her co-workers also grabbed her. 116 Although she complained to her dispatcher and to one of the alleged harassers throughout her employment, she did not complain to the superintendent or the Equal Employment Opportunity officer until after this last incident. 117 In August 1996, Parkins filed a formal grievance, which spurred Civil Constructors to conduct an investigation and ultimately punish the employees. 118 While the harassment ceased, Civil Constructors did not rehire Parkins for the next season s work, 119 and Parkins sued, alleging hostile work environment sexual harassment. 120 The Seventh Circuit required that the plaintiff show a basis for employer liability for her hostile work environment claim. 121 The court acknowledged the Ellerth/Faragher defense and focused on determining the essential attributes of a supervisor for the purpose of assigning employer liability. 122 The court considered the common law of agency and the purposes of Title VII, and it reasoned that a nominal supervisor is not necessarily a supervisor in this context. 123 Then, the Seventh Circuit posited that the essence of supervisory status is the authority to affect the terms and conditions of the victim s employment, and that such authority primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. 124 Using this definition, the Seventh Circuit rejected the notion that Parkins s harassers were supervisors because the men had limited authority and control over the work setting, 113 Id. 114 Id. 115 Id. 116 Id. 117 Parkins, 163 F.3d at Id. 119 Id. The facts are not specific with respect to who made the actual decision not to rehire Parkins, and for this reason there is no real analysis of a tangible employment action. See id. 120 Id. Parkins also alleged retaliation; the District Court granted summary judgment for defendant because it had remedied the harassment quickly and because Parkins failed to make a prima facie showing of a retaliation claim. Id. 121 Id. at Id. at Parkins, 163 F.3d at Id. at 1034.

15 2010] CHAIN OF HARASSMENT 139 and none of them had the power to hire, fire, promote, demote, or discipline. 125 Both the Eighth and the First Circuits subscribed to the bright-line, narrow approach to decide an employee s supervisory status. The Eighth Circuit aligned with the Seventh Circuit in deciding Joens v. John Morrell & Co., an appeal from summary judgment against a plaintiff claiming that her harasser had some supervisory authority over her. 126 Joens worked in a box shop in the employer s meat packing plant, where she made boxes from flat pieces of cardboard. 127 She recognized that the superintendent of the floor was her immediate supervisor, but she also alleged that her harasser, the day shift foreman, was a supervisor because of his ability to demand that she make more boxes for his floor. 128 In assessing the employer s liability, the court adopted its own version of the Parkins rule, holding that the alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties. 129 The court rejected the plaintiff s contention, finding that she had not shown a genuine issue of material fact because the harasser had no direct authority to control her, no real power to discipline her, and no meaningful power to assign her more work. 130 Similarly, the First Circuit adopted the Parkins definition in Noviello v. City of Boston. 131 In this case, the plaintiff worked within an extensive hierarchy of Boston s Department of Parking Enforcement. 132 The plaintiff caused the dismissal of her immediate supervisor by reporting an egregious act of sexual harassment. 133 Her complaint alleged sexual and retaliatory harassment in the months after the initial incident by those above her in the department s hierarchy. 134 The 125 Id. at Joens v. Morrell & Co., 354 F.3d 938, 940 (8th Cir. 2004) ( She submitted evidence that Johnson had some supervisory authority over [her] because he could write her up for violation of company policies or failing to perform her work and could provide her with additional work. ). 127 Id. at Id. 129 Id. 130 Id. at Noviello v. City of Boston, 398 F.3d 76, 96 (1st Cir. 2005). 132 Id. 133 Id. at 82 ( While on the job on September 11, 1999, plaintiff-appellant... was riding in a city-owned van with her immediate superior, José Ortiz. After first announcing his intentions, Ortiz forcibly unhooked the plaintiff s brassière, ripped it from her body, hung it on the van s outside mirror, and bellowed a crude sexual remark to a fellow employee on the street. ). 134 Id. at 83.

16 140 SETON HALL CIRCUIT REVIEW [Vol. 7:125 workplace consisted of four or five rungs of authority; while the plaintiff argued that those on higher rungs were her supervisors, the court rejected such an approach that elevates nomenclature over actual authority. 135 Similarly, the two harassers chiefly involved in creating the abusive work environment did not have the authority to terminate, discipline, or otherwise affect the terms and conditions of [plaintiff s] employment. 136 The court decided that the negligence standard of coemployee harassment applied, meaning that the city would be liable only if it knew or should have known about the conduct and did not address it appropriately. 137 The Fourth Circuit handed down a similar decision in Mikels v. City of Durham, but the court approached the issue in a broader sense and considered additional factors that tempered the severity of the bright line rule. 138 Mikels, a police officer, filed suit after a fellow police officer grabbed her face and kissed her on the mouth. 139 In its analysis, the court first cited Ellerth for the proposition of acknowledging malleable terminology in deciphering a standard for supervisory employees. 140 Then, it suggested that an inquiry may have to run deeper into the details of relationships and particular circumstances and looked to the Supreme Court s agency reliance as a touchstone, though not a prescription. 141 Moreover, Mikels considered whether the relationship between harassers and victims is such to constitute a continuing threat to her employment conditions that make her vulnerable to and defenseless against the particular conduct in ways that comparable conduct by a mere co-worker would not. 142 While the court cited an employee s ability to make tangible employment actions as a powerful indicator that he is a supervisor, it supplemented this factor with a consideration of the 135 Id. at 96. Analyzing the department s structure, the court found only two actors with sufficient authority to qualify as supervisors; however, these individuals were not guilty of harassment. Id. 136 Id. at Noviello, 398 F.3d at Mikels v. City of Durham, 183 F.3d 323, (4th Cir. 1999). The parties argued the case before the Supreme Court issued its holdings in Ellerth and Faragher; the Fourth Circuit, however, decided the case after those cases. Id. The court noted that Mikels did not raise the issue of the Ellerth and Faragher standard of vicarious liability as relevant intervening authority as she could have done according to Federal Rules of Appellate Procedure 28(j); however, the court chose to address the matter sua sponte in the interest of fairness. Id. at Id. at Id. at 333 (internal quotation marks omitted). 141 Id. (emphasis added). 142 Id.

17 2010] CHAIN OF HARASSMENT 141 victim s response. 143 Quoting the Supreme Court, the Fourth Circuit assessed whether the plaintiff feel[s] free to walk away and tell the offender where to go, or does she suffer the insufferable longer than she otherwise might? 144 Although the court detailed its standard as partially subjective, it held that Mikels had no real prospect of proving her harasser was a supervisor. 145 Though he had a higher rank within the police department, he had no authority to take tangible employment actions against Mikels. 146 She also was not isolated from the protective power of other direct supervisors. 147 Finally, considering Mikels s conduct as indicative of her subjective view of her harasser, the Fourth Circuit decided that she demonstrated [a] lack of any sense of special vulnerability or defenselessness deriving from whatever authority Acker s corporal rank conferred... [after the incident, she] rebuffed him in an obscenity-and profanity-laced outburst[,] rejected his immediately proffered apology, and the next day filed a formal grievance against him. 148 The court considered this conduct to demonstrate that the plaintiff perceived her harasser as a co-employee, not as a threatening and authoritative supervisor. 149 Although the Fourth Circuit ultimately decided that the harasser in Mikels did not rise to supervisory status, the addition of a subjective factor suggests a more moderate rule than the strictly objective definitions of the Seventh, Eighth, and First Circuits. 150 B. Broad Definition Shortly after the Supreme Court issued its holdings in Ellerth and Faragher, the United States District Court for the District of Minnesota created a broader supervisory standard in Grozdanich v. Leisure Hills Health Ctr., Inc. 151 The court relied heavily on the factual situation in 143 See id. at Mikels, 183 F.3d at 334 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 803 (1998)). 145 Id. at Id. 147 Id. 148 Id. 149 Id. 150 C.f. Whitten v. Fred s, Inc., 601 F.3d 231 (2010). The Fourth Circuit recently relied on its reasoning in Mikels to determine that a harasser qualified as plaintiff s supervisor, noting that the critical question was whether the particular conduct was aided by the agency relation[.] Id. at 244 (citing Mikels, 183 F.3d at 332). The Fourth Circuit cited also to Mack, but did not explicitly weigh in on the circuit split. Id. Ultimately, however, the reasoning in Whitten suggests that the Fourth Circuit aligns with the Second Circuit in adopting a broad standard for the definition of supervisor. 151 Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953 (D. Minn. 1998).

18 142 SETON HALL CIRCUIT REVIEW [Vol. 7:125 Faragher to formulate its rule. 152 In Grozdanich, the alleged harasser was a Charge Nurse at a nursing home where the plaintiff worked as a Staff Float Nurse ; while working in his unit, the plaintiff was under the harasser s authority. 153 According to the Objectionable Behavior Policy, a Staff Nurse should report to Charge Nurses unless the Charge Nurse was the harasser, in which case the victim should report to the Director of Nursing. 154 After suffering three instances of sexual misconduct in one day at the hands of the harasser, the plaintiff reported the misconduct to several superiors, including the Director of Nursing. 155 The District Court reiterated the vicarious liability standards of Ellerth and Faragher and decided against a narrow definition of supervisor. 156 The court observed that, while some courts decided a supervisory standard based on an ability to make significant personnel decisions, there was also a more indulgent line of case authority [before Ellerth and Faragher] which maintained that a low-level superior, who retained something less than a plenary authority over hiring and firing could be considered a supervisor for liability purposes. 157 Next, the court looked at the specific factual findings in Faragher, where the Supreme Court found both harassers to be supervisors despite their ultimate inability to hire or fire lifeguards. 158 Although one of the men, Terry, could make such decisions subject to higher approval, the other, Silverman, held only the power to make daily assignments and supervise work and fitness training. 159 Regardless of their job responsibilities, the Supreme Court held that both men were supervisors for the purpose of imputing liability to the city on the sexual harassment claims. 160 Finally, Grozdanich posited that a narrower, bright-line rule distinguishing those who manage... daily activities but may only recommend significant personnel decisions from those who have plenary authority over all such matters could cause a negative and 152 Id. at Id. at Id. 155 Id. at Id. at Grozdanich, 25 F. Supp. 2d at 972 (citing a number of cases from the federal courts of appeals, as well as Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 76 (1986) (Marshall, J., concurring) ( A supervisor s responsibilities do not begin and end with the power to hire, fire, and discipline employees, or with the power to recommend such actions, but contemplate the day-to-day supervision of the work environment and with ensuring a safe, productive workplace. )). 158 Id. at Id. 160 Id.

19 2010] CHAIN OF HARASSMENT 143 insulating effect on employers. 161 The unintended consequence of such a narrow definition, the court reasoned, is that employers could relegate all personnel decisions to a specific department within the company and avoid liability completely. 162 The United States District Court for the Eastern District of Pennsylvania also defined supervisor more broadly than the Seventh Circuit. 163 The court proffered three considerations for its ultimate determination of a standard for supervisors. 164 First, the court considered a Third Circuit decision explaining that the authority to act alone on the employer s behalf, with no other controls, is not required for an employee to possess supervisory authority. 165 The court then looked to the EEOC s definition, which the agency had revised after Ellerth and Faragher. In its compliance manual, the EEOC defined a supervisor as (1) the individual [who] has authority to undertake or recommend tangible employment decisions affecting the employee, or (2) the individual [who] has authority to direct the employee s daily work activities. 166 Finally, the court referenced the Seventh Circuit s definition before rejecting that court s narrow construct. 167 Ultimately, it decided that the test is whether the harasser had the authority to hire, fire, re-assign, or demote her or set her work schedule or pay rate, or that [the harasser] had the power to take tangible employment action against her or affect her daily work activities. 168 The additional factor of affecting daily activities substantially broadens the scope of supervisory authority and promotes a more fact-sensitive analysis, rather than relegating supervisory authority only to those who might affect serious employment changes on other employees. The Middle District of Alabama also determined that a broad definition more adequately carries out the purposes of Title VII in Dinkins v. Charoen Pokphand USA, Inc. 169 This case involved several plaintiffs and a number of egregious allegations against various employees of the Charoen Pokphand live poultry plant in Alabama. 170 The male employees, supervisors by title, subjected the female plaintiffs 161 Id. at Id. 163 Kent v. Henderson, 77 F. Supp. 2d 628, 634 (E.D. Pa. 1999). 164 Id. at Id. (citing Durham Life Ins. Co. v. Evans, 166 F.3d 139 at (3d Cir. 1999)). 166 Id. (quoting EEOC Enforcement Guidance on Harassment by Supervisors, 8 FEP Manual (BNA) 405:7654 (1999), available at harassment.html). 167 Id. 168 Id. at (emphasis added). 169 Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1254 (M.D. Ala. 2001). 170 Id. at

20 144 SETON HALL CIRCUIT REVIEW [Vol. 7:125 to continuous unwanted physical contact and verbal sexual harassment. 171 In determining vicarious liability, the court rejected the Parkins definition. 172 While it presents simple rules for complex cases, it improperly truncates the Supreme Court s holdings in Faragher and Ellerth. 173 Those cases suggested that analyzing employment relationships involves multifactorial analysis rather than simplistic taxonomy. 174 Based on this reasoning, the court decided that an employee is a Title VII supervisor if he has the actual authority to take tangible employment actions, or to recommend tangible employment actions if his recommendations are given substantial weight by the final decisionmaker, or to direct another employee s day-to-day work activities in a manner that may increase the employee s workload or assign additional or undesirable tasks. 175 The court furthered its analysis by referencing unusual situations where a harasser deceives the victim into believing that a supervisory relationship exists, when in fact it does not. 176 Mindful of apparent authority, the court encouraged an approach that examines the totality of circumstances, or the overall work environment, the structural rigidity of the workforce hierarchy, and the relationship among all employees, supervisors, and managers. 177 This included looking at an employee s reasonable beliefs about the harasser s authority, thereby adding a subjective element into the court s analysis of supervisory status. 178 The district courts decisions precede the Second Circuit s decision, Mack v. Otis Elevator Company, 179 which created the split among the courts of appeals. In this case, the plaintiff, an African American woman, worked as a mechanic s helper. 180 The company assigned her to assist six mechanics in a New York City building, and the collective bargaining agreement between Otis and the union designated one employee as mechanic in charge in situations with more than five mechanics at one site. 181 James Connolly was the building s mechanic in charge. 182 The 171 Id. 172 Id. at Id. ( [Faragher v. City of Boca Raton, 524 U.S. 775, 797 (1998)] (eschewing mechanical application of factors ); [Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 768 (1998)] (same). ). 174 Id. 175 Dinkins, 133 F. Supp. 2d at 1266 (citations omitted). 176 Id. (citing Ellerth, 524 U.S. at 769). 177 Id. at See id F.3d 116 (2d Cir. 2003). 180 Id. at Id.